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Under the current law, the Commission will consist of eleven members. Three members will be appointed by the chief judge
of the New York Court of Appeals (the “Chief Judge”), two each by the governor (a prosecutor and a public defender),
assembly speaker, temporary president of the senate, and one each by the senate and assembly minority leader.ix The members
appointed by state legislators must consist of an “equal number of prosecutors and attorneys providing defense services.”x
The initial appointees will serve terms of between two and four years, and subsequent appointees will serve four year terms.
The Commission is permitted to delegate all of its investigative powers to panels of three of its members, with some notable
exceptions. xi If an investigation rises to the point where a hearing is necessary, the Commission is required to hold the hearing
with a quorum of at least eight members. After a hearing before the entire Commission, the Commission may determine that a
prosecutor be admonished, censured, or recommend to the governor that a prosecutor be removed. If the Commission
decides to take any official action following a hearing, at least six members of the commission must sign on. xii
The proposed amendment would: i) vest appellate jurisdiction in the New York Appellate Division (“Appellate Division”)
instead of the Court of Appeals, ii) require the Chief Judge to appoint retired, rather than active, judges to the Commission, iii)
alter the appointee structure so that the governor appoints a majority of the Commission members and iv) include language,
yet to be agreed upon, that would protect district attorneys from interference by the Commission in an active investigation or
case. xv The amendment is expected to be passed in January, when the state legislature reconvenes. However, the legislature is
not obligated to pass the amendment, and with all members of the legislature up for re-election in November, there is the risk
that the new legislature could choose to re-negotiate or refuse to pass the amendment.
The Lawsuit
On October 17th, DAASNY, joined by David Soares, representing all district attorneys, and Robert J. Masters, representing
all assistant district attorneys, filed a challenge to the law forming the Commission, alleging that the law is unconstitutional on
seven different grounds, seeking to enjoin the formation and operation of the Commission and seeking to have the law and
the Commission declared unconstitutional under the New York and U.S. Constitution. xvi
Interference with the independence and core functions of the District Attorney’s office.
The complaint claims that the law forming the Commission violates the New York Constitution (“NY Constitution”) by
interfering with the independence and core functions of the District Attorney’s office. The plaintiffs argue that well
established New York case law forbids the legislature from substantially impairing the powers and duties of an office created
by the NY Constitution. xvii Since the office of the district attorney is created by the NY Constitution, the legislature is
forbidden from substantially impairing the powers and duties of a district attorney. xviii By giving the Commission the power to
take or threaten to take disciplinary action against any prosecutor for any decision, the statute impermissibly grants the
Commission the power to interfere with prosecutorial decision making and operation of the office of the district attorney. xix
More specifically, the plaintiffs argue that the law violates the independence of the district attorney’s office by granting the
Commission the power to: i) grant immunity to any witness it chooses, ii) hold hearings and compel the appearance of any
witness and any prosecutor, iii) investigate and discipline a prosecutor, sua sponte, for reasons such as the prosecutor’s fitness
for office and his qualifications for office, iv) publicly disclose any evidence that it may deem relevant or material to any
investigation, even if such disclosure interferes with an ongoing law enforcement investigation. xx
Additionally, the plaintiffs argue that the law interferes with the independence and core functions of the District Attorney by
granting the Court of Appeals the power to suspend prosecutors while an investigation is ongoing. xxi The proposed
amendment will vest review authority in the Appellate Division instead, so presumably it will also vest the power to suspend
prosecutors in the Appellate Division. However, it is unclear if this change of appellate review will actually cure the defect that
the plaintiffs are alleging because the law still ultimately grants New York courts the power to suspend employees and elected
officials of the executive branch.
The Commission is not part of the civil department structure of the NY Constitution
Under the NY Constitution, New York State’s executive and administrative functions must be organized under no more than
twenty civil departments. xxxvii The Commission is not part of an existing civil department, is not a “temporary commission for
special purpose” and it cannot be considered a new civil department, plaintiffs contend, because it is not headed by an
individual appointed by the governor. xxxviii Plaintiffs argue that the Commission is “imbued with executive and administrative
powers” and in order to pass constitutional muster, it must either be a temporary commission or part of an existing or new
civil department. xxxix Since it fails on all three fronts, the Commission violates the NY Constitution by being outside its
mandated governmental organizational structure.
majority of the Commission members. However, the Commission will still contain members appointed by the legislature
and the Chief of the Court of Appeals.
xxivId. As noted, the proposed amendment will vest appellate review authority in the Appellate Division rather than the
Court of Appeals. Given that the Appellate Division already has authority to discipline lawyers operating under its
jurisdiction, proponents of the commission may have a strong argument that the amendment will cure this particular
alleged defect in the existing law.
xxv Id. at 15
xxvi Id.
xxvii N.Y. Const. art. VI, § 20(b)(1)
xxviii Complaint at 15-16, Soares v. The State of New York (Sup. Ct, Albany County 2018) (No. 906409-18, entry no. 2)
xxix The proposed amendment should cure this defect, as the Chief Judge will be required to appoint retired judges to the
Commission.
xxx Complaint at 16, Soares v. The State of New York (Sup. Ct, Albany County 2018) (No. 906409-18, entry no. 2)
xxxi Id. at 17
xxxii N.Y. Const. art. VI, § 4(k)
xxxiii Complaint at 17-18, Soares v. The State of New York (Sup. Ct, Albany County 2018) (No. 906409-18, entry no. 2)
xxxiv Id. at 18
xxxv Id. at 19 (referencing 22 NYCRR 1240.7(d)(2)(vi))
xxxvi Id. at 19 (quoting 22 NYCRR 1240.8(b)(1))
xxxvii N.Y. Const. art. V, § 2
xxxviii Complaint at 20, Soares v. The State of New York (Sup. Ct, Albany County 2018) (No. 906409-18)
xxxix Id.